Nield and Linda Montgomery - Page 36

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               GERBER, J., dissenting:  With due respect, I dissent from              
          the holding of the majority.  I agree that the majority’s literal           
          reading of the phrase, “underlying tax liability”, is one                   
          possible way to interpret that phrase.  It is my view, however,             
          that the phrase “underlying tax liability”, when considered in              
          the context of section 6330 and specifically in context of                  
          section 6330(c)(2)(B), could also be read to not include a tax              
          liability that a taxpayer has reported and admitted was owing.              
               The intent of the statute was to give a taxpayer the right             
          to challenge the “underlying tax liability * * * if the                     
          [taxpayer] * * *  did not otherwise have an opportunity to                  
          dispute such tax liability.”  Sec. 6330(c)(2)(B)(emphasis added).           
          That phrase should not be interpreted to mean that a person could           
          contest their own judgment as to the correct tax.  The                      
          opportunity to contest tax liabilities is, without exception,               
          granted by statute.1  If a person files a tax return and self-              
          assesses or admits to owing a tax liability, but fails to pay the           
          admitted liability, the statutory opportunity to contest such               
          liability has traditionally been through a refund suit.2                    


               1 It is well established that the United States is immune              
          from suit except where Congress by specific statute has waived              
          its sovereign immunity.  See, e.g., United States v. Sherwood,              
          312 U.S. 584, 586 (1941).                                                   
               2 We must distinguish the circumstances we consider from               
          deficiency proceedings where we have authority to consider                  
          overpayments.  See sec. 6512(b).  A proceeding under section 6330           
                                                             (continued...)           




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